Indonesia: No more delay in criminalizing torture

The Working Group on the Advocacy against Torture (WGAT) and the World Organisation Against Torture (OMCT) presented their joint report on torture and ill-treatment in Indonesia during a constructive and fruitful dialogue with the UN Committee against Torture (CAT or the Committee) during its 40th session in connection with its review of Indonesia’s Second Periodic Report, in Geneva, Switzerland, from 5 to 7 May 2008.[1]

The WGAT and OMCT welcome the effort shown by the Government of Indonesia in fulfilling its international obligation under the UN Convention against Torture (UNCAT), namely to submit its second periodic report.

The WGAT and OMCT wish to raise 5 (five) prominent issues that were highlighted in their joint report and echoed by the Committee in its Concluding Observations released on 16 May.

First, the WGAT and OMCT are deeply concerned about the reluctance shown by the Government to immediately incorporate provisions of torture in its penal legislation, notably in the Penal Code (KUHP). Instead of adopting, without further delay, the draft Penal Code, the Government asserts that acts of torture have been prosecuted under the provision of maltreatment as provided for by Articles 351-358 KUHP. Maltreatment as defined in Article 351 KUHP only covers physical injury, not mental pain or suffering.
Besides the absence of a definition of torture, the WGAT also notes that the Penal Code provides no appropriate penalty for acts of torture. For example, Article 422 KUHP only provides “a maximum imprisonment of four years” for any official, who in criminal proceedings uses coercion, either to extract a confession or to obtain information.

Second, the WGAT and OMCT are deeply concerned about the high incidence of violence against women. In the domestic sphere, women often face violence committed by their spouses. The adoption of Law No. 23 of 2004 on the Elimination of Domestic Violence, as noted by the Committee, still lacks implementing regulations, and there remains insufficient awareness and training of law enforcement officials and a failure to allocate government funds to support the new system.
The WGAT and OMCT also note the persistent practice of female genital mutilation, which the Committee considers must be eradicated “through awareness-raising campaigns in cooperation with civil society”. Moreover, the National Commission on Violence against Women (Komnas Perempuan), in its report to the Committee, clearly notes that under Indonesia’s decentralization scheme, other parts of Indonesia aside from Aceh have started to introduce public flogging as a form of punishment, such as Bulukumba District (South Sulawesi), although this has not been implemented. The Committee, in addition to acknowledging that such punishment has a disproportionate effect on women, requests that such regulations be abolished immediately as a clear violation of UNCAT.
The WGAT and OMCT further note that women migrant workers still face various forms of violence. As stressed by the Committee, women migrant workers were reportedly abused by Indonesian recruiting companies and often placed in situations that amount to ill-treatment.

Third, the WGAT and OMCT are seriously concerned about the lack of specific judicial safeguards for children. The Committee emphasizes several concerns, namely: that the minimum age of criminal responsibility for child offenders is too low; that detained children are not fully segregated from adults; that children are sentenced to imprisonment for minor offences; the lack of a comprehensive juvenile justice system orientated towards education and socialization of children in conflict with the law; and inadequate protection of street children against violence.

Fourth, the WGAT and OMCT are seriously concerned about the widespread torture and ill-treatment of and insufficient safeguards for detainees. The Committee, as affirmed by the report of the Special Rapporteur on Torture[2], stresses that torture and ill-treatment are routine practices to extract confessions or information to be used in criminal proceedings.
The Committee also highlights three main concerns relating to insufficient safeguards for detainees, namely: the long periods of detention in police custody (up to 61 days); the absence of systematic registration of all detainees, including juveniles, and the failure to maintain records of all periods of pre-trial detention; and the limited access to lawyers and independent doctors, as well as the failure to notify detainees of their rights at the time of detention, including their rights to contact family members.

Fifth, the WGAT and OMCT are seriously concerned about the protection as well as compensation and rehabilitation of torture victims. While the adoption of Law No. 13 of 2006 is welcomed as a step forward, the absence of implementing regulations, the mistreatment of witnesses and victims, the insufficient awareness and training of law enforcement officials and the failure to allocate government funds to support the new system have hampered the implementation of the law.

In the spirit of democracy and rule of law, and pursuant to the Concluding Observations of the CAT, the WGAT and OMCT wish to put forward several recommendations to the Government of Indonesia:

1. Widely disseminate the recommendations made by the Committee.
2. Speed up the process of revising the KUHP, notably with regard to punishment for public officials who deliberately inflict or order the infliction of torture or fail to prevent torture.
3. Conduct harmonisation of regulations at the national level so as to eliminate any policy endorsing cruel, inhuman and degrading treatment.
4. Follow through on its commitment to ratify the Optional Protocol to the Convention against Torture (OPCAT).
5. Immediately establish visit mechanisms to monitor places of detention at police stations, prosecutor’s offices, courts, detention centres, rehabilitation centres and correctional institutions.
6. Strengthen the capacity of Komnas HAM (the National Human Rights Commission) to be active on torture prevention.
7. Revise provisions on reparation/redress in the Criminal Procedure Code with regard to the realisation of victims’ rights.
8. Revise Law No. 12 of 1995 on the Correctional Institution by listing places of detention, including social rehabilitation centres, psychiatric institutions, military and intelligence detention facilities, and children educational houses.
9. Revise the policy on reparation/redress, which is a prerequisite for realising victims’ rights.
10. Ensure reparations to victims either by establishing a new commission or by incorporating the function into a designated government institution such as LPSK.
11. Speed up the process of revising Law Number 3 of 1997 on Juvenile Court that increases the minimum age of children’s criminal responsibility.
12. Outlaw all forms of violence against children including corporal punishment in schools, rehabilitation centres, and correction centres.
13. Review all unconstitutional local regulations that discriminate against women and that provide for their unchecked arrest and detention as well as inhuman and degrading punishment.
14. Enact an implementing decree/circular on domestic violence and provide for Special Service Room/Centre mechanisms at the lowest level of police stations, namely at Polsek.
15. Immediately implement Law No. 21 of 2007 on Eradication of Human Trafficking.
16. Revise Law No. 39 of 2004 on Placement and Protection of Indonesian Workers Abroad so as to include provisions and safeguards for the protection of women domestic workers from violence.
17. Support the policy issued by the Health Department to criminalise and to prohibit the practice of circumcision of girls or babies (female genital mutilation).
18. Conduct public education on the risks of circumcision of girls and the human rights implications of such practices.

Contact Persons:

WGAT
Indriaswati Dyah Saptaningrum
Betty Yolanda
(Tel. +6221 797 26 62) indri@elsam.or.id
betty@elsam.or.id
OMCT Cécile Trochu-Grasso
Mariana Duarte :
(Tel. +41 22 809 49 39)
ct@omct.org
md@omct.org

[1] To access all relevant documents, see http://www2.ohchr.org/english/bodies/cat/cats40.htm.

[2] A/HRC/7/3/Add.7, 7 March 2008; www.ohchr.org.